Opinion
No. 2 CA-CV 2018-0112
04-18-2019
IN RE THE CO-GUARDIANSHIP AND CO-CONSERVATORSHIP OF: AYMAN A. HADI, AN INCAPACITATED ADULT. FIRASS HADI, Petitioner/Appellant, v. AMBER MASOUD, Respondent/Appellee.
COUNSEL The Kenney Law Firm P.L.C., Tucson By Shaun P. Kenney Counsel for Petitioner/Appellant Jonathan W. Reich P.C., Tucson By Jonathan Reich Counsel for Respondent/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. GC20160184
The Honorable Charles V. Harrington, Judge
AFFIRMED
COUNSEL The Kenney Law Firm P.L.C., Tucson
By Shaun P. Kenney
Counsel for Petitioner/Appellant Jonathan W. Reich P.C., Tucson
By Jonathan Reich
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Firass Hadi appeals the trial court's denial of his Petition for Appointment of Co-Guardian and Co-Conservator of his incapacitated adult son, Ayman Hadi. For the reasons that follow, we affirm the denial.
Factual and Procedural Background
¶2 We review the record in the light most favorable to upholding the trial court's ruling and will affirm if any reasonable evidence in the record supports its decision. See Johnson v. Johnson, 131 Ariz. 38, 44 (1981). Firass Hadi and Amber Masoud were previously married and had two sons. Ayman, the youngest son, was born in 1998, and has epilepsy, cerebral palsy, severe intellectual disabilities and autistic features, cortical blindness, migraines, and sleep disorders. As a result, he is completely dependent on others for all basic care and activities of daily living.
¶3 When the parties divorced in 2003, they were awarded joint custody of Ayman. In 2016, seven months before Ayman's eighteenth birthday, Masoud filed a Petition for Appointment of General Guardian. Hadi objected to Masoud's petition and requested that the trial court appoint him as co-guardian. Hadi, however, withdrew his objection at the October 2016 trial on Masoud's petition, in exchange for a visitation schedule. The court then entered orders and letters appointing Masoud as sole guardian of Ayman, effective on his eighteenth birthday.
Hadi contends he and Masoud were awarded joint legal decision-making authority and equal parenting time, but Masoud asserts the parties had "joint custody," and she had "final decision-making." The record does not contain the divorce decree.
¶4 In December 2017, when Ayman was nineteen, Hadi petitioned the trial court to appoint him as co-guardian and co-conservator. Masoud objected and the court set a hearing for April 2018. After the hearing, the court denied Hadi's petition, finding that Ayman had no assets, making a conservatorship unnecessary, and that Masoud was "sufficiently providing the necessary care and provisions on behalf of [Ayman]" and that he was in a "stable home environment" at the time. Further, due to the parties' inability to reach agreement on decisions concerning Ayman, the court concluded that appointing Hadi as co-guardian would be "disastrous" for Ayman and that "it is clearly not in the best interest of [Ayman]" to have Hadi appointed as co-guardian. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(9).
The trial court's April 2018 order was not appealable initially because it did not contain the recitation of finality required by Rule 54(c), Ariz. R. Civ. P., "that no further matters remain pending and that the judgment is entered under Rule 54(c)." See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 13 (App. 2016) (Rule 54(c) applies to probate appeals). Accordingly, we revested jurisdiction with the trial court to permit the entry of a Rule 54(c) compliant order. The trial court timely entered such an order and this appeal was reinstated.
Discussion
Application of A.R.S. § 14-5311(D)(2)
¶5 Hadi argues the trial court erred in denying his petition for appointment as co-guardian, asserting that A.R.S. § 14-5311(D)(2) required the court to appoint him and Masoud as co-guardians because they shared joint legal decision-making authority when Ayman turned eighteen. We review a guardianship order for abuse of discretion, see In re Guardianship of Kelly, 184 Ariz. 514, 518 (App. 1996), and we review issues of statutory interpretation de novo, see Baker v. Meyer, 237 Ariz. 112, ¶ 10 (App. 2015). "When interpreting a statute, we first look to its language; if the statute's language is clear and unambiguous, we apply it without employing other principles of statutory interpretation." Beatie v. Beatie, 235 Ariz. 427, ¶ 19 (App. 2014).
¶6 Section 14-5311(D) provides:
Notwithstanding the priorities set forth in subsection B of this section, if the petition for appointment of a guardian for the incapacitated person is filed pursuant to § 14-5301.03 or within two years after the incapacitated person's eighteenth birthday, unless the court
finds the appointment to be contrary to the incapacitated person's best interest:Thus, under § 14-5311(D)(2), upon which Hadi relies, when two people have joint legal decision-making authority at the time that the incapacitated person reaches eighteen years of age, the court is required to appoint both people as co-guardians, unless it finds the appointment is contrary to the incapacitated person's best interest. Similarly, under § 14-5311(D)(1), in cases where one person holds sole legal decision-making authority when the incapacitated person reaches eighteen years of age, the court must appoint that person as guardian, unless doing so is contrary to the incapacitated person's best interest. Section 14-5311(D) went into effect on December 31, 2016. See 2016 Ariz. Sess. Laws, ch. 270, §§ 5, 7.
1. The court shall appoint as the incapacitated person's guardian any person who, by court order, had sole legal decision-making of the incapacitated person when the incapacitated person attained eighteen years of age.
2. If two persons had joint legal decision-making of the incapacitated person when the incapacitated person attained eighteen years of age, the court shall appoint both persons as the incapacitated person's co-guardians.
When it appointed Masoud as sole guardian, the trial court observed "it sounds like [§ 14-5311(D)] had been passed but was not in effect," and also concluded that even if the statute was in effect, Hadi had "negotiated away" his legal decision-making authority at the October 2016 trial, when he agreed to withdraw his objection to Masoud's petition in exchange for a visitation schedule. In resolving this appeal, we assume without deciding the statute was in effect, as Hadi urges, and that he did not waive his argument that it applies. --------
¶7 Here, the parties dispute whether they shared joint legal decision-making authority, and the trial court did not decide the question. But, as noted, the court found Masoud was "sufficiently providing the necessary care and provisions on behalf of [Ayman]" and that he was in a "stable home environment." And, the court found that Hadi and Masoud's inability to agree on certain issues would cause "delays—and many delays—in any important decision in this case and maybe every important decision in this case until a court could hear the matter and decide the matter." The court concluded it would be "disastrous" for Ayman and "clearly not in the best interest of [Ayman]" to have Hadi appointed as co-guardian.
¶8 Although § 14-5311(D)(2) plainly requires that "the court shall appoint" co-guardians in the circumstances alleged by Hadi, § 14-5311(D), with equal clarity, provides an exception when the court "finds the appointment to be contrary to the incapacitated person's best interest." That is, the court may deny a person for an otherwise-mandated guardianship or co-guardianship if appointing him is not in the incapacitated person's best interest. That is what happened here.
The Evidence Supports the Trial Court's Order
¶9 Hadi also argues the trial court's denial of his petition "is neither in accord with the law nor the testimony and facts adduced during trial" and "do[es] not comport with the 'best interests' standard set forth as the express legislative purpose and intent mandated under A.R.S. § 14-5311(D)(2)." Specifically, he argues Masoud made inconsistent statements and false accusations at the hearing, and the facts do not support the court's findings that: "[t]he guardian is sufficiently providing the necessary care and provisions on behalf of the ward" and "[t]he ward is in a stable home environment at this time." Masoud counters that her testimony is sufficient to support the court's ruling and that Ayman's occupational therapist also testified that Ayman was "doing very well" in Masoud's home. The therapist, who had worked with Ayman since he was an infant, testified that he was doing well because of the "[w]onderful care by his mother, consistency, [and] a good coordination with the school program." She also testified that while living with Masoud, Ayman had "a pretty solid routine," which is best for him because "he performs and functions best when he knows who's coming, what to expect, when to expect it." Thus, Masoud argues the testimony in this case "reasonably supports the trial court's ruling" and "also provides more than enough support for good cause to pass over [Hadi] even if A.R.S. § 14-5311(D)(2) is properly applied to the case."
¶10 "Because the trial court is 'in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings,' this court will not reweigh the evidence but will look only to determine if there is evidence to sustain the court's ruling." Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, ¶ 8 (App. 2004) (quoting In re Pima Cty. Dependency Action No. 93511, 154 Ariz. 543, 546 (App. 1987)). Moreover, because neither party requested findings of fact pursuant to Rule 52(a), Ariz. R. Civ. P., "we must presume that the trial court found every fact necessary to support its judgment, and we must sustain those presumptive findings if they are justified by any reasonable construction of the evidence." See Master Records, Inc. v. Backman, 133 Ariz. 494, 497 (1982). Thus, based on the record before us, we conclude the evidence presented justifies the court's findings.
De Facto Termination of Hadi's Parental Rights
¶11 Lastly, Hadi argues the trial court's denial of his petition, in combination with its order appointing Masoud as sole guardian, was "tantamount to a de facto termination" of his parental rights. Hadi did not raise this argument below. Thus, the argument is waived and we do not address it. See Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, ¶ 12 (App. 2011).
Attorney Fees
¶12 Masoud seeks attorney fees pursuant to A.R.S. § 14-5314(A). Section 14-5314(A) provides that a "guardian who is appointed pursuant to this article . . . is entitled to reasonable compensation from the estate of the ward if the petition is granted, or from the petitioner if the petition is denied." Because we do not read this provision as a fee-shifting statute, we deny Masoud's request. As the prevailing party, however, Masoud is entitled to taxable costs pursuant to A.R.S. § 12-341, upon compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶13 For the foregoing reasons, we affirm the trial court's order denying Hadi's petition to be appointed co-guardian.